Question: One of our employees has asked to bring her 16-year-old daughter to work so she can volunteer for school credits. Can we allow this?
Answer: It depends. Under the federal Fair Labor Standards Act (FLSA), employees may not volunteer services to for-profit private sector employers. However, private employers may have trainees or students in the workplace under the School-to-Work program (STW) or an internship program.
If you want to allow your employee’s daughter to do work for you as an intern, you will need to classify her as such. Keep in mind internships can be either paid or unpaid. The United States Department of Labor (DOL) uses six criteria to determine whether an internship is exempt from the minimum wage and overtime requirements of the FLSA (meaning the internship may be unpaid). Under the DOL test, for an intern to be exempt from the minimum wage and overtime requirements, all of the following must be true:
1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
For more information on the DOL six-factor test, see Fact Sheet #71: Internship Programs Under the Fair Labor Standards Act. Note that the 2nd Circuit (Connecticut, New York, and Vermont) and the 11th Circuit (Alabama, Georgia, and Florida) do not use the DOL six-factor test but instead use the “primary beneficiary test.” Under the primary beneficiary test, a court determines whether the employer or worker benefits more from the internship. If the employer benefits more, the worker is properly classified as an “employee” and is entitled to minimum wage and overtime. If the individual benefits more, he or she is properly classified as an unpaid intern or trainee and exempted from the minimum wage and overtime requirements (nonemployees). As unpaid internships have proven to be a litigious area of employment law, seek legal guidance before electing to not pay an intern.
Finally, beyond these exceptions to the FLSA, if your employee’s minor 16-year-old daughter will be doing any work for the company not as an intern, she must obtain a work permit, must be paid at least the applicable minimum wage, and is entitled to the protections afforded other employees. You’ll also need to consider that each state has its own laws governing the employment of minors. Check here to review the laws applicable to your state.